Opinion
No. 99-10150-02.
July 18, 2000.
Memorandum and Order
This matter came before the court on July 17, 2000, for a hearing on defendant Emory Jourdan's Motion to Suppress (Docs. 21, 22). The court heard evidence and orally denied the motion at the conclusion of the hearing. This written memorandum will supplement the court's oral ruling.
I. Facts.
Based on the evidence presented at the hearing, the court makes the following findings of fact. On October 23, 2000, Kansas Highway Patrol Troopers Doug Rule and Rich Jimerson were in a patrol car traveling eastbound on I-70 in Ellis County. Rule had a "K-9" drug detection dog in the car. At approximately 2:45 p.m., Rule saw a Freightliner tractor/trailer truck traveling east that did not have a gross weight listing on the side of the truck as required by Kansas law. The truck was marked "Southerland Trucking" out of Los Angeles, California. Rule decided to stop the truck because of the violation and in order to conduct a truck inspection pursuant to K.S.A. § 66-1318. Rule turned on his emergency lights and stopped the truck. Rule got out and spoke with the driver of the truck, co-defendant Lynsford Hutchison. Rule could see a passenger who was asleep in the cab. Trooper Jimerson remained in the car for awhile and then got out and stood near the back of the truck. Rule could detect a strong odor of air freshener coming from the cab of the truck. Rule explained the violation concerning the failure to post the gross weight on the truck and asked to see Hutchison's papers for the truck. Hutchison produced his license, log book, registration, and "IFTA" card (International Fuel Tax permit). Upon examining the log book, Rule discovered that Hutchison had exceeded the number of hours he could lawfully drive without resting. Rule mentioned this to Hutchison and told him to proceed to the next truck stop to get some rest.
Trooper Rule gave the foregoing verbal warnings but did not issue any citation. He concluded the stop, and the troopers got back in the car and continued east on I-70. Rule expressed some suspicion to Jimerson concerning the truck and indicated that he wanted to see if the truck stopped at the next truck stop. Approximately 15 minutes later, the troopers pulled into the parking lot of the Golden Ox Truck Stop in Hays, Kansas, and saw the truck. The troopers could see three men who were getting out or who had just gotten out of the truck. Rule considered it unusual for three adult males to be traveling in one tractor/trailer rig. Rule parked the patrol car about twenty feet away from the truck. The patrol car was not blocking the truck's path.
Trooper Rule approached Hutchison to talk to him. The other two men, one of whom was the defendant Emory Jourdan, continued walking into the truck stop. Hutchison saw Rule approaching and stopped to talk with him. Rule asked Hutchison whether he had permission from his employer to have the two other individuals in the truck with him. When Hutchison said no, Rule told him that he was supposed to have permission from his employer to have passengers in the truck. Rule told Hutchison that it was okay, and to have a safe trip. Trooper Rule saw nothing to indicate that Hutchison had any trouble understanding him during any of their conversations. Rule then asked Hutchison if he could search the cab of the truck. Hutchison said "okay," but said he did not have the keys to the truck. He indicated that one of the other men in the truck stop had the keys. Hutchison went into the truck stop, retrieved the keys, came back and unlocked the door of the cab. Rule opened the door of the cab and crawled inside. He again smelled a strong odor of air freshener. Rule saw a duffel bag in the cab and found a .357 magnum firearm in the bag. He then lifted up a sleeper berth in the cab and saw bags containing marijuana.
All three men were subsequently arrested. Trooper Jimerson read defendant Jourdan his Miranda rights, and Jourdan later voluntarily gave a statement to the troopers.
Defendant Jourdan called co-defendant Lynsford Hutchison to testify at the suppression hearing. On direct exam, Hutchison testified, among other things, that at the truck stop both troopers approached him, that they did not ask about the passengers and did not ask for permission to search, and that they simply stated they wanted to search the cab. Hutchison testified he felt he had no choice but to comply. On cross-exam, when the government began to inquire about Hutchison's social security number and whether that number had been properly issued to him, Hutchison, acting through counsel, invoked his fifth amendment privilege against self-incrimination and declined to testify. At that point the government requested that the entirety of Mr. Hutchison's testimony be stricken from the record. The court need not address this request because to the extent Mr. Hutchison's testimony at the hearing conflicted with the testimony of Trooper Rule (or Jimerson), including the circumstances surrounding Mr. Hutchison's granting of consent to search the cab, the court concludes that the testimony of Trooper Rule was credible and that Mr. Hutchison's testimony was not credible. In view of this finding, the government's request to strike Hutchison's testimony is moot.
II. Discussion.
Defendant Jourdan does not challenge the initial stop of the truck on I-70. He does contend that the search of the truck at the truck stop violated his fourth amendment rights because the troopers unlawfully detained co-defendant Hutchison at the truck stop without reasonable suspicion and they searched the truck without obtaining voluntary consent from Hutchison to do so.
Based on the evidence presented, the court concludes that the search of the truck did not violate the defendant's fourth amendment rights. Approximately 15 minutes after the initial stop of the truck on I-70 was concluded, Trooper Rule approached co-defendant Hutchison at the truck stop in Hays. Jourdan contends this amounted to an unjustified detention of Hutchison, but the court concludes it was in fact a consensual encounter. A consensual encounter occurs when there is voluntary cooperation between a private citizen and a police officer in response to noncoercive questioning by the officer. United States v. Morin, 949 F.2d 297, 300 (10th Cir. 1991). "A court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." United States v. Elliot, 107 F.3d 810, 814 (10th Cir. 1997). At the initial traffic stop in this case, Rule had returned all of Hutchison's papers to him and had let him go without even issuing a citation. The initial encounter was clearly limited and non-threatening, and was separated in time from the encounter at the truck stop. At the truck stop, Rule parked the patrol car where it was not blocking the truck and approached Hutchison on foot to talk to him. Hutchison and his two companions had gotten out of the truck and were in full public view in the parking lot of the truck stop. Rule did nothing to indicate to Hutchison that he was not free to walk away or to decline to talk. Rule approached by himself and did not use any show of authority to restrain Hutchison. He did not display a weapon or touch Hutchison. There is no evidence that he used any commanding tone of voice or blocked Hutchison's path so as to indicate that compliance was required. The court notes that defendant Jourdan and his companion felt free to continue walking to the truck stop when Rule came up to talk to Hutchison. In sum, this was not a seizure; it was a consensual encounter. Notwithstanding the fact that Rule wanted to ask Hutchison about the passengers and wanted to get permission to search the cab, there is simply no evidence that he used a show of authority or coercive means to restrain Hutchison from leaving.
During the initial encounter on I-70, Rule admonished Hutchison to get some rest at the next truck stop. Jourdan has not challenged the officer's authority to give such a directive, and the court notes that the officer's statement appears appropriate in view of the evidence that Hutchison had exceeded the number of driving hours permitted by regulation. Nor has Jourdan expressly argued that the officer's directive constituted a continuing seizure of Hutchison. At any rate, the court would find such an argument unpersuasive, given that the officer's admonition only prevented the defendant from continuing to drive the truck, not from leaving on foot or from riding with someone else.
The evidence shows that in the course of talking to Hutchison Rule asked if he could search the cab. Nothing about the circumstances of this encounter or the manner in which this was asked would indicate to a reasonable person that compliance with the request was required. The evidence shows that Hutchison, who as far as the officer was concerned had apparent authority over the cab, gave unequivocal and specific consent by saying "okay," by retrieving the keys, and by unlocking the door of the cab. In sum, the evidence showed that Hutchison gave consent freely and intelligently without any implied or express duress or coercion on the part of the officer. As such, the court concludes that the search of the cab was lawful and did not violate the defendant's fourth amendment rights.
Defendant's only contention with respect to the statement he gave to the troopers after his arrest is that the statement was a product of the unlawful search. Because the court finds that the search was lawful, it rejects defendant's contention that the statement should be suppressed.
In view of the foregoing findings, the court need not address the other arguments asserted by the parties.
III. Conclusion.
Defendant Jourdan's Motion to Suppress (Docs. 21, 22) is hereby DENIED.